The soldiers were arrayed in rows (8 or 16), with arms at the ready, making a solid block that could sweep bristling through the more dispersed ranks of the enemy. Originally employed by the Spartans, it was developed by Epaminondas of Thebes (d. 362 B.C.). Use of the phalanx reached its apex when Philip II and Alexander the Great used the great Macedonian phalanx (16 deep and armed with the sarissa, a spear c.13 ft/4 m long) to conquer all Greece and the Middle East. Later, the Macedonian phalanx deteriorated and had few Macedonians in it; it was defeated in several battles with the Romans who conquered (168 B.C.) the Macedonians at Pydna. Thereafter the phalanx was obsolete. Because it lacked tactical flexilibity [sic], the phalanx was a better defensive than offensive formation.

Anyway, Dworkin, armed not with a sarissa but with a sharpened quill pen dipped in his deep well of purple ink, anguishes over the approaching ultra-right-wing phalanx.

The phalanx is attacking doctrines. Doctrines aimed at all sorts of things: "reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman's right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective."

Don't worry. In Dworkinworld, when doctrines -- liberal doctrines -- are "aimed" they shoot goodness. The reduction, recapture, protection, and establishment of good things for us. But look out! The ultra-right-wing phalanx is on the march, "proceeding with breathtaking impatience," "Jacobin in its disdain for tradition and precedent," "guided by no judicial or political principle at all."

Go read the article and see if you think he supports his view. He discusses a few cases from last Term: the school integration case, "Bong Hits 4 Jesus," the campaign finance case, etc. With each, he expresses strong support for the dissenting position and strains to show that the conservative majority is not just wrong, but outside of any respectable form of constitutional analysis. He stresses the "virtue" of "integrity" in constitutional analysis, and the ultra-right-wing phalanx (of course) doesn't have it.

Take Hein v. Freedom From Religion, the case in which the Court said that a taxpayer lacked standing to raise an Establishment Clause challenge to spending on White House conferences that helped religious groups apply for federal grants (part of the Faith-Based and Community Initiative). Long ago, in Flast, the Supreme Court devised a doctrine that makes it possible for taxpayers to assert Establishment Clause claims, and this doctrine is noticeably out of synch with the rest of standing doctrine. Ordinarily, taxpayers can't sue over the way the federal government spends tax money. In Hein, the Court faced a new situation -- executive spending rather than statutory law -- and the question was whether to treat it in accord with the general standing doctrine or to include it in the Flast doctrine. I won't further expand this post with more of my own analysis -- which is already set out back here -- or more of Dworkin's -- which you can also read. My point is: You can rail about the incoherence of Alito's decision. The dissenting liberal justices did, and so did Justice Scalia (joined by Thomas) in a [phalanx-breaking] concurring opinion that said Flast should be overruled. But that incoherence comes from an attempt to respect and work with precedent rather than to go back and build clear doctrine from the constitutional text. It doesn't seem quite fair to criticize that as lacking "integrity," especially in a big attack about how the phalanx is overruling things. Dworkin seems to realize he's being incoherent here, because he takes the trouble to assert that "[i]n effect, the majority overruled Flast in pretending to distinguish it." But no, what Alito did (joined by Roberts and Kennedy) was to make a great effort to preserve Flast.

In their Senate confirmation hearings Roberts and Alito both declared their reverence for precedent; they might be reluctant openly to admit that they deceived the Senate and the people. It is therefore not absurd to suppose that this series of odd decisions covertly overruling important precedents is part of a strategy to create the right conditions for overruling them explicitly later.

And another not absurd thing to suppose is that they testified honestly. But go ahead, smear their honor. You believe they are ultra-right wingers, and you are Ronald Dworkin, writing in The New York Review of Books, so you might as well suppose and suspect up a storm.

104 comments:

You know, Ann, I'd love to see you address the question of the court's direction honestly, someday. Surely you must be aware that if another Republican is elected (or if Bush gets to name another justice), the court and the country will be transformed beyond recognition. Howver conservative you may be personally, I doubt you are anywhere near as conservative as Roberts, Alito, Scalia, or Thomas. (You do still call yourself a moderate, don't you?)

So what are your feelings about the dramatic shift to the right that we are going to see in American law as a result of the Bush presidency and, especially, if another Republican gets elected?

I've never been a particular Dworkin fan, but I never expected to see him descend into Chemerinsky territory like this.

As for his "strain[ing] to show that the conservative majority is not just wrong, but outside of any respectable form of constitutional analysis," that seems very similar to the point I was struggling to articulate in my comment yesterday about people who are incapable of admitting - even to themselves - the possibility that there is any valid position other than theirs, and how "this seems to bespeak a deep-seated intellectual insecurity: they almost seem to have a need to believe that their argument is absolutely compelled by reason, ex visceribus res, so to speak, perhaps out of fear that they might be wrong if there were any rational possibility of an alternative answer."

And another not absurd thing to suppose is that they testified honestly.

You're so right, Ann. Totally not absurd. Just as it's totally not absurd to believe that Clarence Thomas testified honestly.

SENATOR LEAHY: You were in law school at the time Roe v. Wade was decided. Was it discussed while you were there?

THOMAS: The case that I remember being discussed most during law school was Griswold. But I did not spend a lot of time debating all the current cases.

LEAHY: I am sure you are not suggesting that there wasn’t any discussion at any time of Roe v. Wade?

THOMAS: Senator, I cannot remember personally engaging in those discussions.

LEAHY: Have you ever had discussion of Roe v. Wade in the 17 years it has been there?

THOMAS: Only in the most general sense that other individuals express concerns, and you listen and you try to be thoughtful. If you are asking me whether or not I have ever debated the contents of it, that answer to that is no, Senator.

LEAHY: Have you ever stated whether you felt that it was properly decided or not?

THOMAS: I don’t recollect commenting one way or the other. There were, again, debates about it in various places, but I generally did not participate.

Like Dworkin, Verso appears to be oblivious to the gulf between Roberts and Alito, on the one hand, and Scalia and Thomas on the other. Roberts and Alito are certainly conservative judges, as are Scalia and Thomas, but the latter two are far more formalist, and far more willing to displace precedent if doing so will leave the law clearer, more coherent, and thus more stable (Hein is a perfect example - there was nothing unreasonable about continuing the court's Valley Forge approach in not extending Flast, as the plurality preferred, but doing so leaves the law less clear and less coherent than simply overruling Flast, as Scalia urged).

I really wish I shared the left's confidence that this is a court one vote away from overruling Roe, but I really doubt that. Even if you had a direct, head-on Casey-like challenge, I'm not sure Roberts would overrule it.

Lastly, for all this supposed "right wing lurch," those who didn't like the result in Rapanos are pushing Congress to amend the CWA, and Congress looks almost certain to amend Title VII in response to Ledbetter. Don't like the result in Carhart? Repeal the law or bring a commerce clause challenge as Justice Thomas practically invited. Don't like the result in Bell Atlantic? Amend the FRCP. Don't like the result in Leegin?? Pass a new antitrust statute. Much of the supposed revolution will simply force Congress to do its job and take the consequences - the last thing that Congress wants. So where's the beef?

Dworkins screed is full of leftwing tropes regarding "injustice" as seen through the lens of those who adhere to European Left/Socialist philosophy, as opposed to the individual rights and limiteed Government views of the actual Constitution and those who wrote it. Verso offers more of the same.

Note they offer no specifics as to what the scary Conservatives will do that is so bad. other than not legislating leftist policy preferences from the bench when they fail to get them thru the ballot.

Simels back into the vortex. For someone who stormed off in a huff, you sure do seem to still hang around plenty. Do crawl back under your rock - or at least, stick to subjects you're qualified to discuss. There was a post about Britney the other day, you'll feel right at home.

As usual, you’re spot on. I, not being a Constitutional scholar, have never heard of Chemerinsky. Based on your comment tho, it would seem that I’ve not missed any scholarship.

BTW Did you see the post on Volokh the other day about Latinisms? I’m as guilty as you in that regard. Joke: “de profundis” is High Brow for “ex visceribus”.

And on a non substantive note, re “phalanx”, I, based on my scholarly knowledge of psychology, think that Dworkin has made a Freudian slip. He, um, weeps, at the thought that we might get a fifth ultra-right-wing Supreme Court justice”, but he knows that all is lost with only four. By golly, he might be forced to go through the legislative process to get what he’s so far gotten by judicial fiat (to use a Latinism).

Sorry Ann but he goes at it chapter and verse and to be dismissive of the arguments present without what amounts to be a curt denial isn't at all scholarly.

those of us "non-legals" are reminded of board of directors whereby a minority stake in a corporation holds great sway in the ongoing business. 4 isn't a majority here but if the "4" votes solidly and consistently in a block - which Dworkin asserts - the majority is reduced to 1 of 5 being swayed.

That Mr. Bush strayed off the Cheney reservation by trying to get Harriet in on the court has been considered by many, me included, to be just a straw dog, placed there so that Allito and Roberts would appear less strident and political by comparison....something of the "oh thank God he came to his senses" type of thing...so happy that the nominee was even marginally openminded - which doesn't really seem to be the case.

to be dismissive of the argument isn't good form. to refute the argument is better.

I suppose, echoing Dworkin (and equally applicable to Breyer's dissent in School Cases, 127 S. Ct. 2738), we might say that there is clearly no honest, principled argument against the decisions Dworkin rails against, otherwise he would surely have offered it instead of this mush.

FI - Chemerinsky's scholarly writing's a lot better than his non-scholarly writing, I should say, and even if it's wrong and disagreeable, some of it's certainly worth reading. And I gained a smidgen respect for his honesty at the Alito hearings: unlike Larry Tribe, who desperately wanted to play his designated part of frying Alito while not looking like his designated part was to fry Alito, Chemerinsky seemed to positively relish the role.

I saw and indeed posted in that Volokh thread (sub nom. Simon Dodd). I'm a counterrevolutionary on this matter - I find the efforts to purge Latin from legal usage incredibly pretentious, and without some other outstanding merit in their defense, the commissars of that purge occupy a very dim spot in my estimation.

hdhouse said..."those of us "non-legals" are reminded of board of directors whereby a minority stake in a corporation holds great sway in the ongoing business. 4 isn't a majority here but if the "4" votes solidly and consistently in a block - which Dworkin asserts - the majority is reduced to 1 of 5 being swayed."

Even if so, that's something that's at least equally true of the court's four liberals. Last term - and, for that matter, the last term Rehnquist was Chief - showed what Dworkin regards as the conservative bloc far more deeply and frequently split than what is reasonably regarded as the liberal bloc. Souter is a bit more conservative on antitrust (e.g. Leegin, Bell Atlantic), Ginsburg breaks off on punitive damages (e.g. Philip Morris), and Stevens is idiosyncratic here and there (e.g. Scott v. Harris), but other than that, you have a phalanx on the left that is certainly no less and probaby a great deal more "unbreakable" than the two blocs on the right.

You are certainly correct in asking that the argument presented be an argument rebutted. All to many times an argument is answered with attacks and character assassination.

That said, I find the overall supposition - that the court has gone far to the right through the devious and dishonest blueprints of several conservatives - to be contemptible and beneath discussion by thinking people of any political stripe.

David53 - I presume he is echoing the meme that, for example, WRTL and Carhart claimed to distinguish, but in fact overruled sub silentio McConnell and Stenberg, respectively. This claim - not an exclusively liberal one, mind you, as Our Hero made clear in WRTL in his own inimitable fashion - doesn't strike me as being convincing. It's also particularly ironic when levelled at Chief Justice Roberts, the former Rehnquist clerk; shortly after then-Justice Rehnquist joined the court, Prof. Shapiro offered an article that argued (among other things) that when the court overruled cases, it ought to say so, but Justice Rehnquist had a habit of saying that he was distinguishing a case while functionally overruling it sub silentio. See Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harv. L. Rev. 293 (1976).

My goodness! If the court's conservatives are "guided by no judicial or political principal at all," then how on earth could they possibly form any kind of "unbreakable phalanx?"

I mean, if Dworkin is correct, then you would expect their decisions to be distributed scattershot around the political spectrum, as the cabal of justices reach their decisions through the only methodology left to them: Rolling dice, casting lots, and practicing augury.

If Dworkin's premise is true, and there is no judicial or political intellectual framework to govern the conservatives, then wouldn't that leave an awful lot of power with the the court's liberals, who presumeably ARE governed by a set of political principles? (Dworkin originally refers to a lack of judicial or political principles. The fact that he presents them together, as seemingly coequal in the context of judicial reasoning, is telling.

I see precious little evidence that our liberal justices are governed by very much in the way of judicial principles at all; I would be very disappointed if our conservatives were ruled by any principles that were not arguably judicial in their nature in the first place.

B said... "that the court has gone far to the right through the devious and dishonest blueprints of several conservatives - to be contemptible and beneath discussion by thinking people of any political stripe."

As long as supreme court justices are nominated after vetting by a political process and their advise and consent again centers on button questions, one can think of nothing less. The Thomsas Q&A is more telling than not and while probably minor in the great scheme of things I would think that someone who is being considered to be one of the 9 last words on constitutional law and the cases that grow from it not to have thought much about Roe is pretty slim.

Jason, I don't think that argument works. Even if one accepts Dworkin's premise that they aren't deciding cases by any cognizable legal or judicial theory, it doesn't follow that there is no other criterion and that the decisions must therefore be random. I think what Dworkin's arguing (or at lesat, a valid criterion under his argument) is that the "conservative bloc" simply votes for whatever the more "conservative" result in the case happens to be. Which is fictitious in light of cases like last term's installments in the popular long-running movie franchises Due Process Limits on Punitive Damages (see Philip Morris) and the Matt Damon adaption of Robert Ludlum's thriller The Apprendi Line (see Cunningham and Rita).

Thank you very much for the response. But I believe Dworkin's argument is self-defeating - and in your response to my post, you contribute to the refutation of Dworkin's point.

After all, if you are right, and the conservatives of the SCOTUS do tend to vote for the more conservative course of action (DUH! That's why we call them "conservatives!"), then Dworkin's argument is refuted: They ARE governed by some kind of political or judicial philosophy.

My intent was not to argue that the conservatives are not governed by any judicial or political principles. Of course they are.

My intent was simply to highlight the absurdity of Dworkin's position.

I regard Dworkin's position as part and parcel of the larger tendency among liberals to assume that their position is the only reasonable position a rational thinker can adopt. The underlying assumption among too many on the left, and Dworkin among them, is that anyone not governed by big "L" liberal political, judicial, philosophical and ethical principles must therefore be governed by none at all.

I’m not one of your prigs, but I’m for using an English phrase over a Latin one unless the Latin phrase has become lapidary or when the phrase is really part of ordinary speech of the cultured class. I don’t think that we have to converse solely in Basic English & I’m obviously not against polysyllabic words or foreign expressions, but the simpler the better for clients & e-mail readers. I think too much of this makes it look like a priestly caste to our clients, who think that veritas simplex oratio est.

Also when you write in an e-mail “sub nom.”, I get it because I took 6 yrs of Latin, but I’d save that for footnoting. And, with all due respect, I suggest that your ex visceribus leaves even the most educated person, shall we say, out in Left Field.

I agree with Volokh that “[Law] Students should understand [such] phrases [as prima facie, sui generis, inter alia, in camera, et al….] and know how to use them right (though in some situations the best solution is not to use them at all; for instance, better say "among other things" than "inter alia").

And I know that all professions use terms of art which those outside the caste may not recognize & which they are forced to research & that such research is not harmful to educated persons.

And I'm not sure that every one of Dworkin's epigoni (!) knows what a phalanx is! (Military phrases: aeternum vale). Especially when he himself doesn't seem to know what it means.

There’s a fine line here. To paraphrase Gowers, I’d avoid things which irritate the educated reader and distract his attention, and so make him the less likely to be affected precisely as I wish. See "Dog-Latin" in Brewers & "LAW LATIN" (caps in original) in "A Dictionary of Modern Legal Usage”.

BTW (excuse the initialese) Dworkin has a fondness for the word “Jacobin” in describing Conservatives, a strange word to use by one who is fond of protecting the rights of terrorists, but I digress.

Here we seem to sidebar, but we’re still on the use of language. Once, a Conservative used the term “Jacobins” orally & Jimmy Breslin (who?) went after him for using the phrase “jackal bins’ which he, Breslin, used to show the elitism of conservatives because he could not find that word in any dictionary.

Anyway, I assume that Dworkin used this word purposely to inflame rather than educate his readers. But for the Jimmy Breslins of the déclassé world, he then makes an illusion to pool, rather than billiards.

FI - Truthfully, I'm not entirely sure that "ex visceribus res" wasn't cut from whole cloth the other day in the post I linked to - the more well-known term that I adapted it from, of course, is ex visceribus verborum. And my use of sub nom. in that reply was somewhat tongue in cheek. ;)

With that said, I don't think there are any serious or reputable arguments for eliminating latin in particularly legal usage, semi-casual or formal. The argument that's usually offered - my spies tell me this is behind the purge in English law - is something akin to your observation about "it look[ing] like a priestly caste to our clients, who think that veritas simplex oratio est," viz., that it makes law seem more "accessible." But with all due respect, that argument is paper-thin, IMO; unless one proposes to eliminate all terms of art, law will always be opaque to the uneducated layperson, and it has nothing to do with latin terminology; if Ann walked out and picked five random people off the streets of Brooklyn - not exactly a backwater - I'll bet you that more of them could tell her what habeas corpus is than what sovereign immunity is, notwithstanding that the former is in latin and the latter English.

As you point out, law inescapably "use[s] terms of art which those outside the caste may not recognize & which they are forced to research & that such research is not harmful to educated persons." To suggest that it makes it harder to learn what's involved with an in limine motion because whatever's involved it has a latin name strikes me as being facetious. Unless someone's a complete clot - in which case, law probably isn't going to come easily to them anyway - the latin terminology poses no greater barrier to entry than does the English and modified French terminology (presumably the commissars would have appeals courts sit "with all judges presiding" rather than "en banc").

To add insult to injury, there's no consistency. No one in their right mind militates for writing "t.i." instead of "i.e." for "f.e." instead of "e.g." No one is going to abolish the use of et cetera. No one believes that cases should be reported as Smith a. Doe instead of Smith v. Doe (or With Regards to Johnson rather than In re Johnson. Yet at the same time, they do want to eliminate many terms (some of which you name), some of which either lose their immediate cognition as a term of art when rendered in English (de novo, for example), and others which simply can't be as elegantly or efficiently rendered in English (inter alia, in camera, arguendo, etc.).

As I see it, there really isn't a good argument for eliminating such terms, and I find the more zealous (present company excepted, of course) commissars of the purge pretentious for their Orwellian desire to uproot their linguistic inheritance and prune out anything that doesn't meet their fairly grim, inelegant and utilitarian ideas of written NewSpeak. If these terms really are redundant, as I see it, they will fade in due course without interference from the glorious revolution. But the fact that they have survived in use this long, I think, gives them a very strong presumption in their favor.

"Surely you must be aware that if another Republican is elected (or if Bush gets to name another justice), the court and the country will be transformed beyond recognition."

ROFL!

Oh, wait--you're serious? Might I ask how old you are? Anyone who's 50 years or older won't have any problem recognizing the "transformed" country you fear because we all remember living in such a country! Please, get some perspective...

Dworkin's approach to constitutional interpretation seems to be something like this: If one reflects deeply on the kind of poltical society the constitution is intended to create, one can discern the supreme interpretative principle that is implicit in its text. And this supreme interpretative principle is as follows: Language in the consititution should always to be interpreted so that the result will be to do good. As for what is "good", this can be answered by taking note of evolving notions of moraltiy.

I don't think Dworkin's analysis is as silly as most of you do, and I think Ann's criticism is not so weighty -- it's just that one could interpret the facts differently. It could be that Alito and Roberts lied and disrespect precedent by overruling without saying so (and Scalia and Thomas help them by attacking them for not explicitly overruling when they do so); it could be that Scalia and Thomas really are upset and Roberts and Alito really are incrementalists who respect precedent more than Scalia and Thomas. In any event, I think there's little argument that Alito and Roberts are very political "movement" conservatives who are engaging in partisan entrenchment. Dworkin thinks that's bad because he's a liberal. I don't see how that makes his essay a piece of shit. It's written in a liberal magazine for a liberal audience. He's described the trend right from the liberal perspective.

Like others, I thought that Dworkin's latest screed in the NYRB was, at best, a prosecutor's brief. It was in keeping with his usual take-no-prisoners style -- the last piece of his I recall in the NYRB argued that the Bush Admin's entire NSA program was utterly, unquestionably illegal. That too was a provocative claim that many would dismiss as more political than legal in substance.

In this article, Dworkin says (and, I think, not very controversially): "All lawyers are familiar with the phenomenon of doctrinal ossification. An appellate court writes a set of formulaic standards to guide itself and lower courts in interpreting abstract consitutional clauses, standards that produce decisions that are obviously correct in the cases then pressing; but later the same standards when applied to new political circumstances seem to require decisions of uncertain or dubious moral merit." Dworkin was talking about the Court's decisions that required strict scrutiny whenever the Gov't uses race to distinguish between citizens, when "strict scrutiny" was barely disguised code for "unconstitutional." He approves of the earlier decisions, but thinks that the real point is to "'smoke out' illegitimate motives for racial distinctions disguised as benign ones."

But put aside the specific context of the race cases. What Dworkin is arguing here is that fundamental distinctions in constitutional law are open to reconsideration (according to him) when they become "ossified," which a judge can determine by asking whether the results they generate in new cases "require decisions of uncertain or dubious moral merit." Unfortunately, just as "[t]e Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," Lochner v. NY (1905) (Holmes, J., dissenting), the Constitution does not embody any particular moral theory (there are many to choose from -- Aristotelian, Kantian, utilitarian, situational ....).

By taking the Constitution's provisions at differing levels of generality, one could pretty much justify a claim that almost any moral theory is consistent with any given provision in it. If "moral merit" is nevertheless the touchstone by which Dworkin wants us to distinguish principled constitutional adjudication from usurpation by a "phalanx," we are on very slippery ground. If "moral merit" is the key, then the issues in dispute are not legal, in the sense that they can be decided by appeals to text or precedent; but instead are political, in that the turn on deeper questions of societal values.

Thus, Dworkin's perceptive comment about "ossification" does more than just torpedo the argument he makes in this article (except, perhaps, for those who think that judging "moral merit" is an objective exercise). The same perception explains why (as Dworkin shows, albeit in a backhanded way) the Court will always be weaving back and forth on cases such as Grutter and the Seattle/Louisville decision from last term that he goes on about. The Court's trajectory from Brown v. Board, to Bakke, and then Adarand, Grutter and now Seattle/Louisville has been full of such twists; it has never been, and even Dworkin doesn't want it ever to be, about "applying precedent." The reason is, as Dworkin says, that the real issue dividing the justices has to do with "moral merit." The Constitutional text is capacious enough, vague enough, to permit all of those twists and turns.

Because the fundamental dividing line between the "phalanx" and Dworkin thus turns on matters of "moral merit," it is simply idle to complain about a "phalanx" of unprincipled conservative judges. There is no basis to distinguish one "phalanx" from any other - Dworkin just reduces it to a perjorative synonym for "majority." If he were consistent (I realize that consistency is only a fault of the small-minded, a category in which Dworkin clearly does not see himself), Dworkin would have to say the same about the different "phalanx" that held sway during the Warren years.

The bottom line is that, if we (like Dworkin) want the SCOTUS to be deciding these value-laden issues where the result is not clearly determined by Constitutional text (that's pretty much every hot-button case), we are insisting that the SCOTUS be a political player, picking and choosing the result it will impose upon us all guided only by the justices' differing views of "moral merit." In fact, the SCOTUS has been in that business for a long time. Dred Scott, Plessy, Lochner and Korematsu, among many other cases, suggest that the SCOTUS is a most uncertain guide when it comes to such matters, and that the first 2,000 names in the phone book might do just as well. But Dworkin wants to keep the SCOTUS in that role nonetheless. Having taken that position, Dworkin's talk about a "phalanx" is just his way of saying that he votes for the other team.

Thus, Dworkin's perceptive comment about "ossification" does more than just torpedo the argument he makes in this article (except, perhaps, for those who think that judging "moral merit" is an objective exercise).

I take no position on it here, but Dworkin does in fact believe in "moral facts", e.g., that "slavery is wrong" is a true proposition.

To add to Richard's observations on Dworkin's complaints with strict scrutiny, Dworkin seems to think that strict scrutiny was good when dealing with bad racial discrimination, and is now bad when dealing with good racial discrimination. This rests on the same meritless argument - demolished by Justice Thomas' School Cases concurrence, as it has been demolished often in the past - that there is any meaningful distinction between "good" racial discrimination and "bad" racial discrimination.

Mortimer Brezny said..."[Dworkin's] bottom-line is in close cases there is a right answer and it is the moral one. He doesn't really believe in open questions."

More even than that: summarizing Dworkin's thinking, Posner observed that "Dworkin claims that every legal question has a right and a wrong answer; that is, an answer given by law and an answer contrary to law." Posner, THE PROBLEMS OF JURISPRUDENCE 22 (1990) (emphasis added). Of course, the really interesting question begged by that is that even assuming something akin to a declaratory theory of law holds goid, if "the law" answers every question, what is "the law" - that is, to what sources of law and authority do we look to find those answers? I suspect it's Dworkin's answer to that question that's the real problem.

Mortimer: "His bottom-line is in close cases there is a right answer and it is the moral one. He doesn't really believe in open questions."

I don't think you are quite right about Dworkin's position, but if you are, it puts him in a very awkward place. A constitution forming a democratic republic doesn't have much room for a philosopher king let alone an infallible pontiff (either singly or in a phalanx). It is all well and good to think one's own moral values are the "right answer"; many people hold that view. But it's foolish to say that, therefore, in "close cases" one's own moral values should be read into the constitution and imposed on the nation at large. Your reading of Dworkin reduces him to a crank.

Nor is it much use in invoking a theory of "moral facts." To whatever extent one could come up with a list of "moral facts" that wasn't merely idiosyncratic, they are unlikely to have anything to do with the constitution. The "slavery is wrong" variety doesn't help, because (a) the 13th Amendment unambiguously solved that problem, and (b) the cases Dworkin is writing about all invlove moral values of the "more or less," rather than "either/or," variety. Racial classifications -- his example, not mine -- is a case in point. As Simon notes, his position is that it's bad except when it's good, and you tell the difference by judging the "moral merits" of the results. That argument seems to be going around in a big circle, getting nowhere.

Richard Dolan said..."[I]t's foolish to say that ... in 'close cases' one's own moral values should be read into the constitution and imposed on the nation at large."

"If judges are to avoid imposing their own values on the rest of us, ... they must be neutral ... in the definition and the derivation of principles [as well as their application as Wechsler had advocated]. ... The Supreme Court's constitutional role appears to be justified only if the Court applies principles that are neutrally derived, defined and applied." Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 7, 35 (1971).

"[Mortimer's] reading of Dworkin reduces him to a crank."

That's not the same thing as saying Mortimer's reading of Dworkin is inaccurate.

While I would say Posner probably lost the Posner/Dworkin debate, that is a fair summary of the "semantic sting," which I was trying to avoid talking about by limiting discussion to hard cases, mostly because it bores me. I think most people accept that Raz won the Raz/Dworkin debate and also that Dworkin has moved the field of jurisprudence ahead, even if he did so by showing how fantastically wrong one can be.

I think what bothers me most is the quick descent to "my opponents are either poltroons or blackguards or both". Are there no principled arguments from the right any more in the eyes of the Left? Is the only answer that my opponents are liars?

That's not an argument. I'm not sure it's even an assertion so much as it's an anguished exclamation of outrage that anyone could disagree. Hardly useful.

Well, dtl, Dworkin and Ginsberg and Stevens and Sens Leahy and Schumer are Commie Stalinist bastards, "(a)nd my (totalitariandar) goes off big time with (them). It will be amusing to watch that outing story a few years hence."

I’m not sure where we disagree, & I don’t want to go on ad nauseam. Of course I don’t want to descend into Newspeak or some form of Basic English or even Pidgin English. And I’m quite aware of the disastrous results in making the Bible “available” to everybody when the magnificent King James Version (Or Douay Rheims for RCs) was read & cherished by even the barely literate. And I understand that English has adopted many foreign phrases which even the Illiterati use as if they were English.

But take a look at the parody of legalese in Brewers.

And think of Calhoun The Lawyer on Amos & Andy & Sid Caesar’s pitch perfect gobbledygook. This is how we sound to the public sometimes.

And why not “before the full court” or “in the full court” rather than the Law French “en banc”?

And BTW, I had to look up the meaning of ex visceribus in Black’s to find that it’s a déclassé version of de profundis.

So, let me repeat, & perhaps I’m a vox clamantis in deserto: Est modus in rebus; I’d like to get rid of those things which irritate the educated reader or educated client and distract his attention, and so make him the less likely to be affected precisely as I wish.

We shouldn’t much have to care what a SCOTUS Justice’s raison d’être is or what his principles or policies are other than to interpret the law fairly.

But SCOTUS has made its leg of the three legged stool more important than the others. It has become a super legislature, able to assert its will over the others & the people regarding policies & principles. It has simply taken over the Amending function (Art V) under the guise of interpretation. Penumbras upon emendations, or is it vice versa? And another 25 years for some form of Affirmative Action. Capital punishment is NG until it is OK & then we whittle it away. And the beat goes on, as explained in some detail by Simon, Richard, Seven & others here.

Dworkin doesn’t want to fight in the voting booth, that’s his “Bottom Line”.

She's as right wing as they come and if you read her postings it's obvious.

If you genuinely think Ann's as right wing as they come, you're too ill-informed to constructively participate in any discussion of the ideological spectrum.

Anyway, your assertion is easily tested: Name a right-leaning blogger to the left of Althouse. If you can't identify a nontrivial number of such bloggers, you've got a radically binary view of ideological commitment in which "as right wing as they come" is a meaningless statement and typing it is pointless. If you can . . . well, we'll cross that bridge when we get to it, but I'm curious to see who you come up with if you take a stab at itl.

The reason Ann comes off as hostile to left-wingers is that virtually all of the left-wingers here act like immature assholes towards her. Naturally she doesn't seem friendly! If the local libertarians and conservatives accused her of being a crazy drunken idiot with no grasp of the law every time she said something disagreeable about civil rights legislation or academic freedom, she'd be hostile to us too -- not because she's a political extremist, but because she doesn't like people who act like dicks all the time.

Prosecutorial Indiscretion,Everyone is welcome to their own opinion, but naming "a right-leaning blogger to the left of Althouse" as the crux of your defense is ridiculous.

If I name a right-leaning blogger to the left of Malkin, would that in turn make her less right wing? Would it make her moderate?

Your argument is specious at best.

My specious argument beats your inane assertion any day. And your follow up questions don't relate to my challenge. Whether Althouse is more or less to the right than other bloggers doesn't make Althouse more or less right wing on any absolute scale. It just defines where she lies on the spectrum in relation to someone else. Your assertion that Althouse "is as right wing as they come" requires that nobody be to the right of Althouse on said spectrum. Rather than admit that you engaged in another instance of hyperbole, you somehow try to use Michelle Malkin to defend your original position. Since Malkin is, by any measure, significantly to the right of Althouse, using her as an example doesn't do you a whole lot of good in terms of redeeming your initial position.

Incidentally, you say "the crux of [my] defense" but I'm not defending anything. I'm attacking your assertion. The point I'm trying to make is not "Althouse is not right wing." It's "Stop wasting my bandwidth with ridiculous comments."

But God forbid you say "I overstated my position" or "I engaged in some silly hyperbole." Instead, when a method for determining whether your statement is true or not you call the method ridiculous. If Althouse is as right as they come, as you say she is, then either everyone on the right is homogenously rightward, in which case your statement is meaningless, or there are bloggers filling in the spectrum between Althouse at the far right and whoever occupies the center. Whether or not their existence makes Althouse more or less right wing is completely irrelevant - put down the red herring and either respond or pipe down.

And by the way...do you consider it a mere coincidence that 90% of the people here...are full on conservatives?

First of all, for the love of all that's holy, lay off the ellipses. Do you think you're injecting a dramatic pause into the conversation?

Second, what does that have to do with my challenge to you? You said something ridiculous, and now you're throwing up smoke trying to draw attention away from your initial dumb comment.

Prosecutorial Indiscretion said...Incidentally, you say "the crux of [my] defense" but I'm not defending anything. I'm attacking your assertion. The point I'm trying to make is not "Althouse is not right wing." It's "Stop wasting my bandwidth with ridiculous comments."

Bullshit, you most certainly are "defending" Ann.

As for "wasting" your "bandwidth"...fuck off.

It's EVERYBODY'S bandwidth and if you don't like what I say...don't read it.

Lucky, I've avoided responding to you directly up to this point because, frankly, I'm not entirely convinced there's any point to it. But enough is enough.

I'm a registered Libertarian raised by a couple of self-described "Lincoln Republicans" in Indiana. I now live in California, a considerably more liberal state than Indiana, as I'm sure you would agree. I've lived among and worked with both rock-ribbed Indiana and Illinois Republicans and Illinois and California Democrats, to say nothing of my Libertarian fellow-travelers and my registered Green tax preparer.

My sense—and a major reason that I visit here—is that Ann is, in fact, a moderate Democrat. She reminds me strongly of my Democratic neighbors in Indiana, whose fund-raisers my parents and I would happily attend. It was understood that we disagreed on many things, but it was equally well understood that everyone was sincere and acting in good faith.

Nothing in your posting in the entire time that I've been reading this blog has represented that point of view. You appear to have a severe case of BDS, parroting the extreme left's (as represented by the 9/11 Truther movement, MoveOn.org, Michael Moore, and DailyKos, to give only a few examples of what "extreme left" means) talking points, are completely and utterly non-responsive to requests for specifics, and respond to specific counterarguments with ad-hominem attacks.

I know I won't get a cogent answer to this, but: why should we lend you any credibility when you say that Ann isn't a moderate? I mean, compared to what? Yourself?

If you think Althouse is not right wing...that's your opinion, but don't you find it rather strange that soooooooooooooooooooooooooooooo many wingnuts here think she's the queen of reason?

Seek employment as a costumer for the Wizard of Oz touring company, because your ability to whip up a straw man is truly impressive.

I never made any claims as to whether or not Althouse leans right. You made a fundamentally assinine comment - that nobody is more right-wing than Ann Althouse. Rather than defend that statement or admit your fault, you have continued to dig an ellipsis-riddled hole and once again spammed up the comments with useless text.

There are a number of regular commenters here who disagree with Ann and through their contributions provoke thoughtful and illuminating discussions. You do not rank among them. I don't understand why you waste so much time posting here when your feeble but frequent comments influence nobody. I suppose seeing yourself a lone voice in a perceived wilderness might have some appeal in terms of making you feel like a martyr, but it's not a healthy way to gratify your ego. Do something constructive. If you don't want to do that, but are still looking for easy ego-gratification and have loads of time to kill, play World of Warcraft. It will keep you occupied, and others won't have to sift through your narcissistic spam.

Defending her from what? A label? You said something dumbass and I called you on it. You still haven't responded to the substance of that critique; you're just throwing up more smoke. You're so concerned with exactly how right wing Ann is. Why don't you tell us. Take the spectrum of blogs from extreme left to extreme right, let us know who fits where, and then we can have a discussion of where Althouse fits in. Otherwise,

As for "wasting" your "bandwidth"...fuck off.

Oh look, another waste of bandwidth. You can write whatever you want (except those ellipses). Just don't write it here. Nobody draws any value from anything you post on this blog. You just clutter up discussions with nonsense. The internet's a big place. Find a home where you're wanted.

If you genuinely think Ann's as right wing as they come, you're too ill-informed to constructively participate in any discussion of the ideological spectrum.

Exactly. That also explains why so much of her audience is conservative. We like to be exposed to opposition opinion, to at least get a fair and balanced perspective of what Moderate Democrats think and believe.

I can say that Althouse and a few of her more liberal posters have swayed my position on gay marriage and adoption issues.

Althouse is one of the few Dem blogs not infested with Moonbats. You may think its bad here, but on most the other Left-leaning blogs, people like Lucky are the norm.

Oh for heaven's sake. Ann Althouse is fair and balanced and NOT in the Faux Noise sense. She doesn't suffer fools nor does she shrink back from calling it on a case by case, issue by issue basis with no perceptible bias. For the life of me I can't predict which side she will favor on any given issue and that is why this blog is entertaining and informative.

That it is inhabited by a fairly large number of libertarians, deep-dish conservatives and just a few liberals isn't reflective of her posts or idiological bent, it is just the audience she draws.

It should be informative that the NYTimes ran "ABUZZ" which was a very open blogsite up until a few years ago when it became too contentious and slanderous to continue. Now one would think that the NYT's blog would draw a fairly liberal following which it did but it was also a focal point of conservative cut and paste...I once was put on a target e-mail list for experessing my views on the Florida election fiasco and in the course of 3 weeks received nearly 125,000 emails and 200+ phone death threats so I don't take the issue lightly nor do I approach this issue with anything less than caution.

I have the good fortune of being banned from Michele Malkin's site for "publishing contrary to the theme" and I only rarely participate in Huffington and KOS because it is too lopsided.

Ann's blog is just right as there are some conservatives on here who have been instructive and reasoned and I take my lumps because of it.

But stop with the labeling. She runs an interesting and "item by item" blog with no real agenda that I can see and I've been blogging for 8 years now.

Even if so, that's something that's at least equally true of the court's four liberals. Last term - and, for that matter, the last term Rehnquist was Chief - showed what Dworkin regards as the conservative bloc far more deeply and frequently split than what is reasonably regarded as the liberal bloc. Souter is a bit more conservative on antitrust (e.g. Leegin, Bell Atlantic), Ginsburg breaks off on punitive damages (e.g. Philip Morris), and Stevens is idiosyncratic here and there (e.g. Scott v. Harris), but other than that, you have a phalanx on the left that is certainly no less and probaby a great deal more "unbreakable" than the two blocs on the right.

Ah, but you missed something. Dworkin gets around this by simply tossing out the decisions that don't break down along his neat lines as non-"ideological" cases. Only the ones that came out 5-4, with the four liberals voting one way and the 4 conservatives voting the other, with Kennedy in the middle, count. (How do we know they're non-ideological? Because they didn't break down on ideological lines!)

Verso writes, above, "You know, Ann, I'd love to see you address the question of the court's direction honestly, someday. Surely you must be aware that if another Republican is elected (or if Bush gets to name another justice), the court and the country will be transformed beyond recognition."

the Court these conservative justices now dominate is plainly in a revolutionary mood, apparently aiming, with little respect for precedent, at a wholesale reconstruction of the constitutional law of past decades.

Great catch about 1991 Dworkin sounding the alarm about “conservative justices” then allegedly dominating SCOTUS being “plainly in a revolutionary mood, apparently aiming, with little respect for precedent, at a wholesale reconstruction of the constitutional law of past decades”.

Alas, you must understand that Dworkin’s, alarms apply only to disrespect of recent Leftist precedent & not, never, to recent (relatively recent) Leftist disrespect of precedent then existing when they were enacting, rather than interpreting, Constitutional Law. And that his 1991 alarm, however you may snigger now, was neither premature nor wrong. These revolutions take time, you see, & O’Connor’s & Kennedy’s respective epiphanies have merely delayed the jackboots from getting their way. Dworkin is ever vigilant.

So, ya see, the first 145 years or so of Con Law is bad precedent & the Constitution had to be amended to be au courant, OOPS make that reinterpreted, without our having to be slavishly hidebound to such precedent, whereas the recent 70 years (don’t hold me to your arithmetical constructs) of enacted law is the one true precedent & must be followed by all enlightened men. Or something like that.

That’s what happens when you try to have it both ways. When you say that Dworkin’s interpretation of reality, Constitutional Law Reality, Political Reality, & who’s afraid of the Big Bad Wolf Reality is not as ridiculous as some of us think, why we’re supposed to divine that you don’t agree with him on any level. Noted.

And when I say:

“Apparently there’s more to interpretation than fairness, also”, sadly that’s no joke.

It was rather plain to Simon that I don't agree with Dworkin and that I was simply describing his philosophy accurately. For some reason you seem to want to cast me as a Dworkinite, but I rather plainly said Dworkin's distinctions are unconvincing and that Raz won the Raz/Dworkin debate. And if you don't see the humor in "there is more to interpretation than fairness" as it relates to the Hart/Fuller debate, then you simply don't understand the nature of the debate between Hart and Fuller (or Dworkin and Raz), in which I was obviously lining up with Hart and Raz against Fuller and Dworkin. If you knew what you were talking about, it would have been obvious to you.

is not as ridiculous as some of us think, why we’re supposed to divine that you don’t agree with him on any level.

There is no inconsistency between the claim that "I do not hold his view" and "his view is less ridiculous than you think" when I do not think you fully understand his view or the relevant issues it touches upon, based on how you have mischaracterized it.

I already provided a link to a scholarly paper on the Hart/Dworkin debate.

Alas, stuck in your attempt to find something not ridiculous in Dworkin’s rant, you have failed to acknowledge my humor & my serious point that you can’t joke your way out of this since it’s not funny. You have failed to explain why your finding Dworkin “not as ridiculous as others here think him” is not a joke on you.

And the subject is Dworkin, not Hart/Fuller.

You want to attack me as not knowing what I’m “talking about”. Funny, I read what Dworkin wrote & I’m up to speed on SCOTUS acting as a legislature, government by judiciary. That’s what I’m talking about. You want to play pedant by citing the Hart/Fuller debate & claiming thereby a higher knowledge of the subject. And that you’re just so much smarter than I am. Go for it.

I prefer to stay focused & discuss government by judiciary.

And, you can make all the, um, ridiculous claims you want about my “mischaracterizing” Dworkin, apparently since you yourself did not read his hit job critically. In his rant (not Hart/Fuller or Raz/Dworkin, or, for that matter Mort/Dworlin), Dworkin decries yet again, 16 yrs from a previous similar rant (a great example of “the phenomenon of doctrinal ossification” that he sniggers at!), the results of a Conservative understanding that SCOTUS judges are, indeed, legislating, voters to the contrary be damned. So it seems, to me at least, that it is, um, “ridiculous” for you to give any credence to this panicky response to the possibility that a President might be elected who would appoint SCOTUS justices who would seem favorable to stopping this legislating process if not reversing it.

There is much to ridicule in the fear that consumes Dworkin & so many others & nothing to suggest some possibility of clear thinking. Liberal doctrines = beauty, truth, & goodness; Conservative doctrines = Beelzebub; it’s simply wrong in Dworkin-world to overrule a precedent which has been in place for 30 years or so, as a result of precedents which had been in effect for 180 years or so having been overruled or ignored! But wait, there’s more! Dworkin has no concept of the principle of proportionality & grossly “mischaracterizes” the opposition to his cherished ideas & ideals (as noted by Prof A): “The ultra-right-wing phalanx is on the march, ‘proceeding with breathtaking impatience,’ "’Jacobin in its disdain for tradition and precedent,’ ‘guided by no judicial or political principle at all’ ”. I would add: Robert’s “Senate testimony was actually a coded script for the continuing subversion of the American constitution. The worst is yet to come.”

My judgment of this, & stay focused now, nevermind Hart/Fuller, suggests a premature sore loser who feels that he cannot get his way in the normal democratic process of the three co-equal branches of government, each with separate functions.

Finally, the most unkind cut of all: he accuses this phalanx of unprincipled Jacobins of following Fox News!

This is the guy you think is not ridiculous? Did you actually read the article? How did you miss that?

Do you understand any of what he’s saying or do you want just to play “can you top this?” re your articles, papers, etc?

You apparently cannot read. I never wrote that Dworkin was not ridiculous. I said I do not think he is as ridiculous as you think he is. There is a real difference. That you cannot see one only proves my point.

Except to the extent I mentioned Hart/Fuller to critique your point that we should care only about judges interpreting the law fairly, which puts you on Fuller's side and thus in substantial agreement with Dworkin, the guy you think is absolutely ridiculous.

Still trying to intellectualize yourself out of a foolish attempt to justify at some level Dworkin’s ways to us antinomian yokels apparently suffering from dysphasia, or just unable to read your coded expression of non support for Dworkin.

“I, Mort, am not in the least agitated and I’m glad to answer any and all questions here and in fact I demand a chance to set the record straight on anything derogatory to me in the writing that’s gone before, especially by Inwood who doesn’t know what he’s talking about. My record is spotless until now and I don’t want it smirched by a whole lot of mischaracterizations by disloyal bloggers.” Click, click go the steel balls… “Steel balls? Nevermind.”

Give it up!

In the interest of, um, fairness, let me return the favor to you as one scholar to another. Here’s my intellectual site to a scholarly paper to help you "get up to speed”: